Legal updates, new research, interesting ideas for students-- past and present-- of LER Prof. Michael H. LeRoy, University of Illinois at Urbana-Champaign. Welcome, also, to friends who are curious about employment and labor law.

Tuesday, August 8, 2017

Judicial Ethics Matter

Suppose two justices on the Illinois Supreme Court accepted a gift of stock from a person whose case they were deciding. What would you think? This happened in the late 1960s, and led to the resignations of Roy J. Solfisburg, Jr. and Ray Klingbiel. It also severely damaged the Illinois judicial system—so badly, in fact, that Illinois restructured its courts and enacted a stricter judicial code to regulate the conduct of judges.

Today, that code has not been updated as frequently as similar codes in other states. The main problem with our current code is that it deals inadequately with the millions of dollars that are pouring in to fund judicial elections.

There is another serious problem. The Judicial Inquiry Board, the agency that hears complaints about judges, magnifies the Code’s deficiencies. An audit of that agency’s disciplinary system found the board operated for 811 days and 1,360 days without filling two constitutionally required positions for non-lawyers. At the time of the audit, it had four vacancies in thirteen positions. The board had 311 pending complaints, some for judicial misconduct and mental incapacity. From 2012-2014, the board operated with two investigators, and one person who doubled as its executive director and general counsel.

Another analysis showed that the board’s budget fell 15%, from $785,000 in 2009 to $680,000 in 2015. Before its budget was cut, this tiny agency had six or seven employees to investigate complaints against judges. Now, it imposes discipline in less than one percent of complaints.

What are we to make of a judge who solicits money from police agencies and health care organizations? That is a matter for the Judicial Inquiry Board to consider. But the case shows a major problem with our code. Most states model their rules after the American Bar Association’s suggested code. Rule 1.2, Canon 2 is titled “Promoting Confidence in the Judiciary.” It says: “A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety (emphasis added).”

Now look at the milder version we have in Illinois—and note that it avoids mentioning shall, and replaces it with should. Our Rule 62, Canon 2 states: “A Judge Should Avoid Impropriety and the Appearance of Impropriety in All of the Judge’s Activities.” Part A continues: “A judge should respect and comply with the law and should conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (emphasis added).”

In sum, many states require judges to avoid impropriety, but Illinois only suggests it in order to maintain the public’s confidence.

So, maybe it’s okay if an Illinois judge solicits and accepts money from groups in exchange for giving lectures. After all, politicians—such as Hillary Clinton— take money for giving speeches. And since our judges are not only elected, but must declare a party affiliation, perhaps our judges should be held to the same ethical standards as Hillary Clinton. But the Chief Justice of the U.S. Supreme Court would probably disagree with that idea. In a recent decision involving a Florida judge who was disciplined for soliciting campaign donations, Chief Justice John Roberts explained that “the role of judges differs from the role of politicians.” He said that judges must strive “to be perfectly and completely independent.” But Florida has a stricter code—so, a judge who takes money while giving lectures might be just right for Illinois’s political culture.

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Personal Bio

Published extensively on antitrust in professional sports, immigration and employment, strikes and lockouts, voluntary and mandatory arbitration, employee involvement teams, academic freedom, and labor law implications stemming from national emergencies

Testified before the full U.S. Senate Committee on Labor and Human Resources

Consulted at the request of the President's Council of Economic Advisers in connection with the Taft-Hartley labor dispute involving Pacific Maritime Association and International Longshore and Warehouse Union

Advised the President's Commission on the United States Postal Service (this bi-partisan commission adopted my recommendations for the use of final offer interest arbitration with various postal worker unions)